Re L (Return Order: Set Aside Application)

A return order made under Article 11(6)–(8) of the Brussels II Regulation may be set aside by the court of origin where there has been a significant subsequent change of circumstances relating to the child’s best interests, such that enforcement might be seriously detrimental to those interests. The decision remains discretionary. This is a higher threshold than an ordinary welfare assessment and prevents a routine second consideration of the welfare checklist after a non-return decision by another state. The High Court also has power under rule 4.1(6) of the Family Procedure Rules to vary or revoke its own orders where the jurisdictional conditions are met.

The mother applied to set aside return orders made in 2017 and 2019 requiring the return of a thirteen-year-old child from Poland to England. The child had been wrongfully retained in Poland after a holiday. Polish Hague Convention proceedings resulted in a non-return decision based on Article 13(b) and Article 20. The subsequent English return order was made under Article 11(6)–(8) of Council Regulation (EC) No 2201/2003. The application raised the jurisdictional basis for that order, the applicable test for setting it aside, and whether the child’s changed circumstances justified relief.

1. Jurisdiction. The court held that the jurisdictional power to make the return order arose through Article 11(7), particularly the provision enabling the court to examine the question of custody. The court followed the reasoning in D v N & D (by her Guardian ad Litem) [2011] EWHC 471.
2. Power to set aside. The High Court had power under rule 4.1(6) of the Family Procedure Rules to vary or revoke the earlier orders. The court relied on N v J (Power to Set Aside Return Order) [2017] EWHC 2752 and the flexible welfare jurisdiction described in Re H (International Abduction, Asylum and Welfare) [2016] EWCA Civ 988.
3. Applicable test. Following Povse v Alpago [2010] 2 FLR 1343, the mother had to establish: (i) a significant change of circumstances after the return order; (ii) a connection between that change and the child’s best interests; and (iii) a risk that enforcement might be seriously detrimental to those interests. Whether to set aside or stay the order remained discretionary.
4. The court emphasised that the limited second opportunity created by Article 11(6)–(8) does not permit the welfare checklist to be applied afresh without satisfying the higher threshold. That threshold was nevertheless clearly met. The child had lived in Poland for several years, expressed strongly held views, threatened suicide if returned, could not presently live with the father, and faced unresolved sexual-abuse allegations and uncertain practical arrangements for return.
5. The orders of Mr Gupta QC and HHJ Nathan were set aside. The court made no findings on the abuse allegations or alleged parental alienation.

First-instance application in the High Court (Family Division). The application concerned return orders previously made by HHJ Nathan and Keehan J, and a further order made by Mr Gupta QC.